Thomas Potter, III

Thomas Potter, III

Burr & Forman

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Obama’s FY2017 Budget Would Double SEC & CFTC Funding

White House officials this week said that President Obama’s fiscal 2017 budget will seek major increases in funding for Wall Street regulators in the near term, and proposes to double their funding by 2021....more

2/12/2016 - CFTC Federal Budget Investment Adviser Municipal Securities Market SEC

DOJ Focuses on Individuals in Corporate Wrongdoing

The U.S. Department of Justice (“DOJ”) has a new view in cases involving corporate wrongdoing (includingfraud and abuse, qui tam, and similar matters). And its gaze is focused squarely on rooting out and punishing the...more

2/11/2016 - Corporate Fraud DOJ Individual Accountability Whistleblowers White Collar Crimes Yates Memorandum

FINRA Arbitrations: Behind Claimant “Win” Statistics

FINRA reported that, for 2015, Claimants won about half of private securities arbitrations: 47% for all-public panel decisions; 45% for majority-public panels. A colleague and securities mediator, Dana Pescosolido, recently...more

1/26/2016 - Arbitration FINRA Securities Litigation

SEC Announces 2016 Exam Priorities

The SEC’s Office of Compliance Inspections and Examinations (“OCIE”) announced the agency’s priorities for this year on January 11. Commission staff will focus on three broad areas: Retail Investors, Market-Wide Risks, and...more

1/15/2016 - Analytics Financial Markets Industry Examinations OCIE Retail Investors Retirement SEC

FINRA’s 2016 Priorities: Fives on the Fifth

FINRA released its annual Regulatory and Examination Priorities Letter (so-called “Errico Letter”) on January 5. FINRA’s top five priorities: Among the also-rans, industry participants will recognize many perennial favorites,...more

1/12/2016 - Anti-Money Laundering Banking Sector Conflicts of Interest Corporate Culture FINRA

Annual Compliance Testing Should Re-Calibrate WSPs

As 2015 ended, FINRA fined Barclays Capital $13.75 million for mutual-fund switching and breakpoint supervisory failures that might have been avoided if that part of Barclay’s WSPs had been properly calibrated and/or part of...more

1/5/2016 - Barclays Broker-Dealer FINRA Mutual Funds Performance Reviews

SEC Approved Municipal Advisor Conduct Rule

On Christmas Eve’s eve, the SEC approved, without change, the MSRB’s proposed conduct rule for municipal advisors. Broadly, the Rule imposes: New Rule G-42 has been in the works since January, 2014 and the MSRB filed two...more

1/4/2016 - Fiduciary Duty Financial Markets MSRB Municipal Advisers Rule G-42 SEC

FINRA-DR Task Force Report on Securities Arbitrations

FINRA’s Dispute Resolution Task Force issued its Final Report in mid-December. The Report reflects the group’s consideration of wide-ranging issues affecting the nation’s principle dispute-resolution forum for broker-dealers,...more

1/4/2016 - Arbitration Broker-Dealer Case Management Dispute Resolution FINRA Task Force

FINRA Submits Revised Recruiting-Disclosure Rule to SEC

On December 16, FINRA submitted for SEC approval proposed Rule 2273 to require that brokers send customers an “educational disclosure” when changing firms. Although the proposal deletes a controversial provision that would...more

12/23/2015 - Brokers Disclosure Requirements FINRA SEC

Banking & Financial Services E-Note - December 2015

In an article published by Financial Advisor on December 8, 2015, Burr & Forman Associate Rhett Owens discusses a proposed rule change from the U.S. Department of Labor (DOL) regarding variable annuities (VAs) that’s set to...more

12/22/2015 - ATDS Banking Sector Bankruptcy Court Business Records FCC Financial Sector Hearsay Prior Express Consent TCPA Variable Annuities

MSRB Files New MA Pay-to-Play Rule with SEC

On December 16, the Municipal Securities Rulemaking Board (“MSRB”) filed with the SEC a proposed rule that would extend to municipal advisers the MSRB’s existing rule prohibiting “pay-to-play” practices and restricting...more

12/21/2015 - Campaign Contributions MSRB Municipal Advisers Pay-To-Play SEC

Broker-Dealer “Pay-to-Play” Rule Proposed to SEC

Last week FINRA proposed for SEC adoption a “pay-to-play” rule for broker-dealers engaged in distribution or solicitation activities with government entities.  The Proposed Rule is modeled after investment-adviser pay-to-play...more

12/21/2015 - Broker-Dealer FINRA Government Entities Pay-To-Play SEC

Supreme Court Reaffirms Arbitration Class-Waivers

The Supreme Court Monday re-affirmed the enforceability of class-waivers in arbitration agreements. The five-justice majority felt the need to rebuke the California courts for trying to end-run Federal preemption through a...more

12/18/2015 - Arbitration Agreements Class Action Arbitration Waivers DirectTV Preemption SCOTUS

Tenn. S. Ct. Examines Jurisdiction Over Non-Resident Defendants

The Tennessee Supreme Court released a December 14 decision reviewing personal jurisdiction over non-resident defendants. First Community Bank, NA v. First Tennessee Bank, NA, No. 2012-01422-SC-R110CV (Tenn. Dec. 14, 2015)....more

12/17/2015 - Collateralized Debt Obligations Discovery Non-Residents Personal Jurisdiction Rating Agencies TN Supreme Court

VW Scandal Bears Out Emphasis on “Culture of Compliance”

Last week, VW blamed its “culture” for allowing “individual misconduct” that lead to the emissions-testing-evasion scandal engulfing the company. It reminded me of a couple of corporate-compliance mantras and of DOJ’s recent...more

12/16/2015 - Compliance Corporate Culture DOJ Self-Reporting Volkswagen Willful Misconduct

SEC Tees Up Newman & Admin Forum Issues for 2016

The SEC granted two petitions for review last week that tee-up significant issues for full Commission consideration late next Spring. The Commission will consider the application of the Second Circuit’s Newman decision...more

12/16/2015 - Administrative Proceedings ALJ Insider Trading SEC US v Newman

A 1,500-Day Ordeal: First Circuit Rebukes SEC for In-House Prosecution

Five years after the SEC brought charges that cost two fund executives their jobs, the U.S. First Circuit overturned the sanctions, chiding the SEC for misreading critical evidence, lacking substantial evidence for its...more

12/15/2015 - Administrative Proceedings ALJ SEC Securities Fraud Securities Litigation

Whistleblower Standing Split in Circuits & TN Federal Courts

There’s a developing circuit split over whistleblower standing for retaliation claims. A decision this week extended that split to U.S. district courts within Tennessee, too. In Verble v. Morgan Stanley Smith Barney, LLC, No....more

12/10/2015 - Dodd-Frank Morgan Stanley Popular Retaliation Sarbanes-Oxley SEC Standing Whistleblowers

DOJ Unveils “Yates Memo” Revisions to US Attorneys’ Manual

Speaking to a November 16 Money Laundering conference jointly sponsored by the American Banking and Bar Associations, Deputy AG Sally Yates unveiled revisions to the Department of Justice’s U.S. Attorneys’ Manual (“USAM”)....more

11/24/2015 - Corporate Misconduct Criminal Investigations Filip Factors Money Laundering Yates Memorandum

Tennessee Securities Division Expands Exam Program

The Tennessee Securities Division, Department of Commerce and Insurance (Julie Mix McPeak, Comm’r) recently confirmed its launch of a comprehensive three-year cycle examination program covering all Tennessee-based...more

11/20/2015 - Broker-Dealer Industry Examinations Investment Adviser Securities Violations

NDGA Judge Halts Another SEC Admin Proceeding

Atlanta federal Judge Leigh Martin May enjoined the SEC from proceeding in yet another administrative enforcement action Tuesday. Ironridge Global IV, Ltd. v. SEC, No. 1:15-CV-2512 (USDC NDGA Nov. 17, 2015)....more

11/20/2015 - Administrative Proceedings Enforcement Actions SEC Subject Matter Jurisdiction Unregistered Brokers

MSRB Issues Compliance Advisory for Municipal Advisors

Last Thursday, November 12, the MSRB published its Compliance Advisory for Municipal Advisors (“MA’s”). The new MA regulatory regime was imposed by Dodd-Frank and implemented by the MSRB and SEC over the past several years....more

11/17/2015 - Compliance Dodd-Frank MSRB Municipal Advisers SEC

SEC Approves Gift Prohibitions for Municipal Advisors

The SEC recently approved the Municipal Securities Rulemaking Board’s (“MSRB”) extension to Municipal Advisors (“MA’s”) of its dealer Rule G-20, restricting gifts in connection with municipal securities. The Rule also updates...more

11/12/2015 - Dodd-Frank Meals-Gifts-and Entertainment Rules MSRB Municipal Advisers Rule G-20

MSRB Amends MA Conduct Rule Proposal Again For Small Exception to Principal Transaction Ban

On November 9, the MSRB filed yet another amendment to its proposed Municipal Advisor conduct Rule G-42. The amendment adds Supplemental Material -.14 and -.15, creating a narrow exception to the principal-transaction ban for...more

11/11/2015 - Brokerage Accounts Fixed Income Investments MSRB Municipal Advisers Rule G-42

FINRA Proposes Rules to Combat Financial Exploitation of Seniors

FINRA Reg. Notice 15-37 (Oct. 2015) requests prompt comment (by November 30) on proposed Rules aimed at detecting and minimizing financial exploitation of seniors and other “vulnerable” adults....more

11/10/2015 - Brokerage Accounts Elder Issues Exploitation FINRA Regulation S-P

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